Blog

What are PFAS?

Whether you’ve read about PFAS litigation or litigated a case involving them, many in the legal field know that PFAS litigation is rapidly expanding. (The potential scope of this litigation is well-illustrated by the movie Dark Waters.) This begs the question: What are PFAS?

PFAS (also referred to as “forever chemicals”) is the term commonly used to describe an entire family of synthetic chemicals[1] used in many products to repel water, dirt, and oil. This family includes perfluoroalkyl and polyfluoroalkyl substances, in addition to thousands of other distinct compounds. (The technical distinction between perfluoroalkyl and polyfluoroalkyl substances is based upon the nature in which H atoms are replaced with F atoms.) The family can be further broken down into numerous classes, subclasses, groups, and subgroups of compounds.[2]

Confused? Don’t fret. Almost all attorneys who’ve litigated a PFAS case stared wide-eyed and clueless at this material when the first PFAS-related matter landed on their desks.

From a litigator’s perspective, there are some key concepts to keep in mind:

• The CDC has found PFAS-related chemicals in the blood of approximately 97% of Americans.[3]
• Since 2018, more than 20,000 people have filed suits for AFFF-related injuries[4] within the MDL located in the United States District Court of South Carolina. This number continues to grow.
• Purported pathways to exposure may include air, water, soil, food, corresponding food containers, and cosmetic products.
• Health effects of PFAS exposure may include:
  • increased risk of
    • kidney cancer
    • liver cancer
    • testicular cancer
    • thyroid disease and thyroid cancer
  • increased total cholesterol
  • ulcerative colitis
  • low birth weight
• Potential sources of PFAS continue to be discovered.[5] Current sources may include:
  • surface water
  • drinking water
  • ground water
  • wastewater
  • fish tissue
  • ambient air
  • indoor air
  • soils
  • sediments
  • vegetation
  • concrete
  • resins
  • food contact materials
  • textiles
  • artificial turf
  • human blood and tissue (used in personal injury matters to prove a plaintiff’s exposure)

Who is Suing and Who is Being Sued?

Notable categories of plaintiffs in PFAS litigation include:[6]

• personal injury claimants alleging exposure to PFAS[7]
• public water systems[8]
• attorneys general[9]

While the classes of plaintiffs are likely to grow, it’s important to be aware that the scope of PFAS personal injury litigation is also likely to expand. This is largely due to the numerous, commonly used consumer products now known to contain PFAS, including:

• plastic bottles
• pesticides
• household cleaning products
• gym bags
• cosmetics/personal hygiene products
• food packaging (and the corresponding foods themselves)
• apparel
• oral hygiene products
• stain resistant products
• firefighting foams
• popcorn bags
• pizza boxes
• paints/sealants
• nail polish
• dental floss
• non-stick cooking appliances
• water-resistant clothing
• shampoo
• candy wrappers

Many of these products likely leave their original manufacturer in what may be considered a “defective” condition for purposes of product liability allegations. However, countless grocery stores, retailers, supermarkets, and other types of vendors distributing consumer products could also be implicated in PFAS litigation. Because of this, retailers such as Lululemon, Dicks, Patagonia, American Eagle, and Calvin Klein have already started phasing out their use of retail products containing PFAS substances.[10]

Claims alleged against PFAS defendants will likely include the same types of claims made in other consumer product litigation: theories of negligence,[11] strict liability,[12] alleged violations of state and federal consumer fraud statutes (and other theories of fraud),[13] breaches of express and implied warranties, and unjust enrichment. While PFAS litigation continues to grow, multiple multinational brands in the fast food and retail industries have been defending consumer class action lawsuits for several years.[14]

Plaintiffs in personal injury cases (often firefighters presently) must prove both general and specific causation. In other words, a plaintiff must prove that PFAS caused their condition and that the PFAS came from a specific defendant(s). Methods for proving these theories are constantly being developed.

Conclusion

As we learned from litigation around others products or chemicals (e.g., asbestos and talc), businesses should be prepared for the growing scope of PFAS litigation to cause developments in case law, state and federal regulation of PFAS substances, workers’ compensation claims, and insurance coverage issues. As litigation expands, it’s also likely that allegations of more diseases may be associated with PFAS exposure. How long it will take for these allegations to surface and whether the science will support such allegations is unknown.

Stay tuned for more …

Now that we’ve addressed the What and Who of PFAS, other questions arise:

• What will new regulations entail?
• What will compliance with these regulations look like?
• How expensive will compliance be?
• What current legal trends affect implicated entities the most?

These issues will be addressed in Part 2 of this series: The When, Where, and Why of PFAS Litigation.

[1] Definitions of PFAS vary. In Illinois, for example, Public Act 102-0290 uses the following: “‘Perfluoroalkyl substance or polyfluoroalkyl substance’ or ‘PFAS’ means a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.” 415 ILCS 170/1. Florida, on the other hand, defines PFAS as “perfluoroalkyl and polyfluoroalkyl substances, including perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS).” Fla. Stat. § 376.91.

[2] We’re talking about matter that’s measured in parts per trillion, soon to be measured in parts per quadrillion.

^[3] https://www.niehs.nih.gov/health/topics/agents/pfc

[4] AFFF stands for aqueous film-forming foam. Plaintiffs comprising this multidistrict litigation (MDL) generally allege that aqueous film-forming foams containing PFOA (perfluorooctanoic acid) or PFOS (perfluorooctane sulfonate) contaminated the environment near military bases, airports, and other facilities or properties where these foams were used to mitigate fuel fires. (For more, see https://www.scd.uscourts.gov/mdl-2873/index.asp.)

[5] Keep in mind that once it’s proven that a defendant’s premises or product contain PFAS, it then must be proven that those substances were absorbed and caused a condition associated with PFAS exposure (i.e., general and specific causation).

[6] An easy way to distinguish between classes of PFAS plaintiffs is to look to the AFFF MDL in the Federal District Court of South Carolina. (This will be discussed in greater detail in Part 2 of this series.)

[7] Currently, this often involves firefighters and their families. However, this also often includes individuals who may have come in constant contact with firefighters or in areas/regions where PFAS compounds may commonly be used, as well as those who have used many of the consumer products now associated with PFAS.

[8] The cost of compliance may be high, and it’s likely to get higher in coming years.

[9] Cost of cleanup and restoration is very high.

[10] For example, see Lululemon’s October 2023 Restricted Substances Publication

[11] Examples: failure to warn, negligent misrepresentation

[12] Example: theories of product liability. (Note that strict liability theories vary greatly based on the entity being sued and the background of the person alleging exposure).

[13] Examples: fraudulent inducement, concealment, or misrepresentation

[14] For example, see this Today show article about litigation filed against McDonald’s and Burger.